Early Conciliation and extension of time

The Court of Appeal (CA) has considered whether a tribunal was wrong to reject a claim for unfair dismissal and race discrimination presented three days late.

Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23

Facts

The claimant resigned on 24 August 2017, having previously notified Acas in May of his complaints under the early conciliation (EC) procedure. He sought to withdraw the notification three days later, at which point Acas issued an EC certificate on the basis that it appeared a settlement of his claims was not possible. The time limit for the claimant to present his claim was therefore three months from the date of his resignation, on 24 November 2017.

The claimant was advised by a firm of solicitors on 16 November that the deadline for submitting a claim was 24 November. He did not accept that this was the correct advice, and thought he could contact Acas again and benefit from an extension to the time limit under the EC rules. On 24 November, he was again advised that any further notification to Acas would not be effective to extend time and that his claim would be out of time if it was not submitted that day. The claimant eventually submitted his claim three days later, on 27 November 2017.

An employment tribunal held that both his unfair dismissal claim and race discrimination claim had been presented out of time. It held that it was reasonably practicable for his unfair dismissal claim to have been presented in time, and it was not ‘just and equitable’ to extend the time limit in respect of the race discrimination claim. The claimant’s appeal was rejected by the EAT.

Court of Appeal decision

The Court of Appeal has dismissed the claimant’s appeal, upholding the employment tribunal’s finding that his claims were out of time. While the delay in submitting his claim was not substantial, the acts he was complaining about took place long before the termination of his employment and he could have complained about them at the time, or immediately following his resignation. He had taken advice at a very late stage and had then chosen not to heed the advice on the grounds that he thought the solicitors had misunderstood the effect of the EC rules.

In handing down its decision, the Court held that tribunals should not rigidly follow the factors set out in s33 Limitation Act 1980 (relating to time limits) but should instead assess all the factors in the particular case that it considers relevant, including the length of and reasons for the delay.

Consequences

This decision provides confirmation that once early conciliation has completed and a certificate issued, it cannot be restarted in relation to the same complaints. It also illustrates a strict approach to time limits, in circumstances when the claimant was properly advised of the applicable deadline to submit his claim. The applicable test for extending the time limit for discrimination claims, when it is ‘just and equitable’ to do so, is often considered to be a relatively low hurdle. However, it is up to the claimant to persuade a tribunal why it should exercise its discretion to extend the time limit and on the facts of this case, it was always going to be difficult for him to succeed.

These articles are from the January 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.